Delhi District Court
State vs . Vikash on 14 January, 2013
IN THE COURT OF SH. SUNIL KUMAR, METROPOLITAN
MAGISTRATE, ROHINI DISTRICT COURTS, DELHI
State Vs. Vikash
FIR No. 525/07
U/s. 61 Punjab Excise Act
PS Jahangirpuri
The date of institution of case: 25.03.2008
The date of reserving the order: 14.01.2013
The date on which Judgment pronounced: 14.01.2013
JUDGMENT
Unique Identification No. : 02404R0654822008 Date of commission of offence : 01.08.2007 Name of the complainant : Ct. Manoj Kumar Name & address of accused : Vikash, S/o Sh. Mukhtiyar Singh, R/o A787, Jahangirpuri, Delhi.
Offence complained of : Section 61 of Punjab Excise
Act, 1914
Final order : Acquitted
Date of order : 14.01.2013
BRIEF REASONS FOR DECISION:
1 Briefly stated, the prosecution case is that on 01.08.2007, at
about 11.05 am at Mangal Bazar Chowk, Near Govt. Senior Secondary School, Jahangirpuri, Delhi, the accused was found in possession of one white colour plastic can containing 12 bottles of 750 ml each of illicit liquor without any license or permit and the accused has been charged with the offence punishable U/s 61 of the Punjab Excise Act.
State vs. Vikash, FIR No.525/07, PS Jahangirpuri Page no.1/10 2 After investigation, charge sheet was filed against the accused. Copies of charge sheet were supplied to the accused in compliance to the section 207 Code of Criminal Procedure (hereinafter mentioned as Cr. PC) and charge for the offence punishable U/s 61 of Punjab Excise Act, 1914 was framed by the then ld. Predecessor of this court against the accused, to which, he has pleaded not guilty and claimed trial.
3 In support of the version, the prosecution has examined four witnesses as cited in the list of witnesses.
4 On careful scrutiny of the testimony of the witnesses reveals that PW1HC Jai Bhagwan is the second IO in the present case, who has deposed that the investigation of the case was handed over to him by SHO Mahender Singh Punia and he sent the sample of the case to Excise Laboratory through Ct. Manoj vide RC No. 1583 NW. He received the excise result on 02.01.2008 and thereafter, he filed challan.
This witness was crossexamined by the ld. counsel for the accused.
5 PW2HC Rohtash is the first of the present case, who has deposed that on 01.08.2007 on the receipt of DD No. 27B Ex. PW2/G dated 01.08.2007, he reached at Mangal Bazar Chowk at about 11.40 am where he met Ct. Manoj and Ct. Mukesh and the accused present in the court. Thereafter, he recorded the statement of Ct. Manoj vide Ex. PW2/A. He asked 45 public persons to join the investigation but none agreed to the same and left the spot without telling their name State vs. Vikash, FIR No.525/07, PS Jahangirpuri Page no.2/10 and address. Thereafter, he sent Ct. Manoj to bring a bucket, one bottle of 750 ml and a mug, which were brought by him. The contents of the said can was measured and found to be containing 12 bottles of 750 ml each. One bottle was separated as sample and remaining liquor was poured back into the same can. The can and the sample bottle were sealed with the seal of RSH and the seal after use was handed over to Ct. Mukesh. Excise Form M29 was also filled up at the spot. The case property was taken into police possession vide seizure memo Ex. PW2/B. Thereafter, he prepared rukka and handed over the same to Ct. Mukesh for getting the case registered, who went to police station and got the case registered and came back at the spot alongwith copy of FIR and original rukka, which were handed over to him. He prepared site plan Ex. PW2/C at the instance of Ct. Manoj. Thereafter, the accused was arrested and personally searched vide memos Ex.PW2/D and Ex.PW2/E respectively. The accused was released on bail at the spot vide bail bond Ex. PW2/F. Thereafter, they came back at the PS and the case property was deposited in the Malkhana. He recorded the statement of witnesses. He also proved the case property as Ex. P1.
This witness was crossexamined on behalf of the accused.
6 PW3Ct. Mukesh Kumar has deposed that on 01.08.2007, he alongwith Ct. Manoj were on patrolling duty at Bear No.2 and when they reached at Mangal Bazar Road, Near Govt. School at about 11.15 am, they noticed that the accused present in the court was coming from the side of Kushal Cinema Road with a plastic can in his right hand. On seeing them, the accused started moving back and State vs. Vikash, FIR No.525/07, PS Jahangirpuri Page no.3/10 thereafter, they chased and apprehended him. Thereafter, they checked the plastic can by removing the cap and found liquor on smelling. Thereafter, the information regarding the incident was given at PS by Ct. Manoj and HC Rohtash reached at the spot. He further deposed almost on the same lines as deposed by PW2HC Rohtash hereinabove and hence, his remaining testimony is not being discussed for the sake of brevity. He proved the arrest and personal search memos of the accused Ex. PW2/D and PW2/E respectively and the case property as Ex. P1.
This witness was also crossexamined on behalf of the accused.
7 PW4Ct. Manoj Kumar has deposed almost on the same lines as deposed by PW2HC Rohtash and PW3Ct. Mukesh Kumar hereinabove and hence, his testimony is not being discussed for the sake of brevity. He further proved his statement Ex. PW2/A, the arrest and personal search memos of the accused Ex. PW2/D and PW2/E respectively and the case property as Ex. P1.
This witness was also crossexamined by the ld. AP for State and during crossexamination, the witness stated that on 16.11.2007, as per the direction of the IO, he collected the sealed sample of the present case from MHC(M) vide RC No. 272/21/7 and deposited the same at Excise Laboratory.
This witness was also crossexamined on behalf of the accused. Thereafter, PE was closed.
State vs. Vikash, FIR No.525/07, PS Jahangirpuri Page no.4/10 8 The accused was examined under Section 281 Cr.PC and all the material evidence against him was put to him and he refuted all the allegations leveled against him and submitted that he is innocent and has been falsely implicated in this case by the police. However, he did not opt for leading evidence in his defence.
9 Ld. Counsel for the accused has submitted that the accused has been falsely implicated in this case by the police officials. It is further argued that the case of the prosecution rests entirely upon the testimony of police witnesses and there are no independent witnesses to corroborate their testimonies. It is further argued that nothing was recovered from the possession of the accused and the recovery, if any, is the planted one upon the accused. It is further argued that there is material contradictions in the testimony of the witnesses, which is fatal to the case of Prosecution. It is further argued that since the Prosecution could not establish the case against the accused for the alleged offence beyond shadow of doubt, it is, therefore, prayed that the accused may be acquitted of the alleged offence.
10 On the contrary, Ld. APP for the State has submitted that every discrepancy in statements of the witnesses could not be fatal to the Prosecution case. It is further argued that the discrepancies which does not effect the Prosecution case materially does not create infirmity and there is no material discrepancies/contradictions in the Prosecution case. It is further argued that the prosecution has successfully established its case against the accused. Hence, it is, prayed that the accused may be convicted accordingly.
State vs. Vikash, FIR No.525/07, PS Jahangirpuri Page no.5/10 11 I have heard Ld. Counsel for the accused, ld. APP for the State and perused the material on record carefully.
12 I have given my thoughtful consideration to the testimonies of the witnesses and perused the entire material on record carefully and observed that as per the prosecution story the accused was found in possession of illicit liquor without any license or permit, but the prosecution could not prove the said allegations upon the accused.
13 In the present case, the prosecution has not been able to prove the present case against the accused. Further, in this case, the Chemical Examiner and MHC(M) to whom the case property had been deposited have not been examined by the prosecution. Further, in the present case, it is stated by the IO that public persons were asked join the investigation but none agreed to the same. Hence, his testimony in this context is not convincing to the Court, as it is highly unnatural that IO could not get even a single person to join in the proceeding despite the fact that the place of arrest is a populated area. The said police official failed to give any reasonable excuse as to why no public person was joined in the police proceedings with notice in writing or why he failed to take legal action u/s 187 IPC on refusal of the public persons. This failure on the part of the prosecution creates reasonable doubts in the prosecution story.
14 In this regard reliance may be placed on the following case laws: State vs. Vikash, FIR No.525/07, PS Jahangirpuri Page no.6/10 In case reported as as ''Roop Chand vs. State of Haryana'', 1990 CCC 3, the Hon'ble Punjab & Haryana High Court has held that:
''When some witness from the public was available then the explanation furnished by the prosecution that they refused to join the investigation,the same is wholly unsatisfactory, particularly when the IO did not note down the names and addresses and did not take any action against them''.
In case reported as ''Maluk Singh vs. State of Punjab'', 1990 CCC 20, the Hon'ble Punjab & Haryana High Court has further held that:
''Joining of witnesses in the case of excise is not a mere formality, although there is no bar in taking into account the testimony of police witnesses, as they are also good witnesses, but to restore the confidence of general public in the investigating agency it is always desirable that whenever any witness from the public is available, he should be joined to rule out the possibility of plantation''.
15 In the above mentioned cases, there are no public witnesses who had been joined in the proceedings. It is not necessary in such recovery that public witnesses must be joined but sincere attempt State vs. Vikash, FIR No.525/07, PS Jahangirpuri Page no.7/10 must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join public witnesses or that they were not available. A stereotype statement of nonavailability or nonagreement on behalf of the witnesses will not be sufficient to serve the purpose.
16 In such cases in view of Saifulla vs. State, 1998 (1) CCC 497 (Delhi) and Abdul Gaffar vs. State, 1996 JCC 497 (Delhi) which held that benefit of doubt is to be given to the accused. In this case also, IO has stated that the seal after use was handed over to Ct.Mukesh, meaning thereby the seal was kept by the police officials themselves and was not handed over to any independent person. Hence, the possibility of tempering with the case property also can not be ruled out in this case as the seal remained with the police official of the same police station.
17 In case law reported as Sadhu Singh vs. State of Punjab, 1997 (3) Crimes 55, Hon'ble Punjab & Haryana High Court observed as under: "In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbably or lacks "credibility, the benefits of doubt necessarily has to go to the accused".
State vs. Vikash, FIR No.525/07, PS Jahangirpuri Page no.8/10 The Hon'ble High Court of Delhi in the case Narain Singh @ Lala vs. State of Delhi, 2005 (1) LRC 294 (Del) (DB) has also ruled that:
"There must be a chain of evidence so complete as to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
Further lastly but not the least, the Hon'ble Supreme Court of India in catena of decisions has also held that:
"In Criminal trial benefit of doubt when on the basis of the evidence appearing on record, two views are possible, accused is entitled to benefit of doubt."
18 In this case also as per my observation and analysis, the words Credibility is found missing as there are several discrepancies in the case of the prosecution as mentioned in earlier paras. Therefore, the accused is again entitled to benefit of doubt.
19 In view of the facts and circumstances of the case, it is crystal clear that the Prosecution has failed to prove its case beyond the shadow of reasonable doubt. There is no convincing evidence on the record, which could substantiate any charge upon the accused and it can safely be concluded that in the present case the evidence on the record is not at all sufficient to hold the accused guilty of the alleged offence, as the Prosecution story is highly doubtful and the benefit of State vs. Vikash, FIR No.525/07, PS Jahangirpuri Page no.9/10 doubt is the right of the accused. It is also an established law of the land that the accused should not be convicted in doubtful circumstances. Even, if there are two views possible, the view favourable to the accused has to be accepted. Since, the Prosecution has failed to establish a case against the accused for the alleged offence beyond reasonable doubt, I am also not inclined to convict the accused in doubtful circumstances. Consequently, by giving benefit of doubt, I hereby acquit the accused Vikash for the offence punishable U/s 61 of Punjab Excise Act, 1914. Bail bond of accused stands cancelled. Surety stands discharged. Documents of his surety, if any be returned after cancellation of endorsement on it.
20 Case property, if any, be destroyed in accordance with rules on expiry of period of Appeal/Revision, if none is preferred or subject to decision thereof.
21 The file be consigned to record room.
Announced and dictated in the open court today i.e. on 14.01.2013.
(SUNIL KUMAR) MM/ROHINI COURTS:DELHI State vs. Vikash, FIR No.525/07, PS Jahangirpuri Page no.10/10